Comparative Judicial Review
Show Less

Comparative Judicial Review

Edited by Erin F. Delaney and Rosalind Dixon

Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.
Buy Book in Print
Show Summary Details
You do not have access to this content

Chapter 18: Pockets of proportionality: choice and necessity, doctrine and principle

Vicki C. Jackson

Abstract

This chapter examines certain ways that proportionality—either as a structured doctrine or as a concept or principle—may affect constitutional adjudication, based on an examination of Australian, Canadian, South African, and US constitutional cases. It explores differences between proportionality as a doctrine and proportionality as a principle and looks at whether proportionality as an approach is experienced by judges as a choice or a necessity. It also explores a potentially significant analytical difference that exists between the principle of proportionality and the doctrine of proportionality review, raising the possibility that the minimal impairment (or “necessity”) inquiry, if always read as a stringent, less restrictive means test, may be at odds with the more general principle of proportionality as applied to democratic self-governing decisions and, if so, asking whether this circumstance should affect application of the doctrine or, rather, should affect the nature of the remedy required.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.


Further information

or login to access all content.